Papazian Law Journal | Mark Papazian

Giarmarco, Mullins & Horton, P.C.
101 West Big Beaver Road | Troy, MI 48084-5280 MAP | Ph (248) 457-7000 | Fax (248) 457-7001
Mark S. Papazian
mpapazian@gmhlaw.com
(248) 457-7085
Mark S. Papazian
← Mark Papazian, of Giarmarco, Mullins & Horton, P.C., Named a Top 100 Michigan Super Lawyers 2015
Mark S. Papazian published in the May 2016 issue of
the Family Law Journal of the American Bar
Association.
Giarmarco, Mullins & Horton, P.C. is pleased to announce that Mark S. Papazian and Geoffrey S. Wagner have been
published in the May 2016 issue of the Family Law Journal of the American Bar Association.
The article is titled The I-864 Affidavit: Practice Pointers for Dealing with a Complex, Confusing, and Potentially Very
Costly Legal Document. Click here to view the article.
The article covers a client’s divorce case. The client’s wife came to the U.S. from China less than a year after: a brief
online courtship and a spontaneous wedding in Las Vegas. Once his wife received her Conditional Green Card, she
packed her bags, moved out and filed for divorce. When the client sponsored his wife’s permanent residency, he
signed an Affidavit of Support known as Form I-896 Affidavit. The client agreed to support his wife and her son at
125% of the U.S. poverty level and to reimburse the government in the event that one of them ever makes a claim
for public assistance. This support obligation does not terminate upon divorce and could mean that the client’s
obligation could exceed $1,000.000.000
The article by Mark Papazian & Geoffrey Wagner covers step by step how they minimized the impact of the I-864
Affidavit resulting in a win for their client. Mark Papazian and Geoffrey Wagner hope the practice pointers they
discussed in the Article will prove to be helpful if and when the issue arises in your practice.
Mark Papazian
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Chair Message........................................................................ 1
By Carol F. Breitmeyer
The I-864 Affidavit: Practice Pointers for Dealing
with a Complex, Confusing, and Potentially Very
Costly Legal Document........................................................ 4
By Mark S. Papazian and Geoffrey S. Wagner
Mediation matters: The Mediator Code............................. 7
By Shon Cook
The Helper In Need Of Help: When A Lawyer
Experiences Domestic Abuse .............................................. 10
By Marla Linderman and Tish Vincent
The Case of the Issue........................................................... 15
By Henry S. Gornbein
Professor Lex........................................................................ 18
By Harvey I. Hauer and Mark A. Snover
Tax Trends and Developments: Court of Appeals
Upholds Equal Division of Federal Tax Refund.............. 23
By Joseph W. Cunningham
Writing and Submitting the Military Pension Division
Order: Five More Tips......................................................... 25
By Mark E. Sullivan
Legislative Update............................................................... 30
By William Kandler & Stephanie Johnson
Volume 46 Number 5 May 2016
Editor: Anthea E. Papista Assistant Editors: Sahera G. Housey • Lisa M. Damphousse • Ryan M. O’ Neil
Editorial Board: Daniel B. Bates • Amy M. Spilman • Shelley R. Spivack • James W. Chryssikos
FAMILY LAW JOURNAL
M I C H I G A N
A Publication of the State Bar of Michigan Family Law Section • Carol F. Breitmeyer, Chair

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Telephone: (248) 614-9005
Fax: (248) 614-9095
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Chair:
Carol F. Breitmeyer
Chair-Elect:
Hon. Richard B. Halloran
Treasurer:
Kent L. Weichmann
Corresponding Secretary:
Robert Charles Treat, Jr.
Recording Secretary:
Elizabeth K. Bransdorfer
Expires 2016
Elizabeth K. Bransdorfer
J. Matthew Catchick, Jr.
Sahera G. Housey
Peter Michael Kulas
Anthea E. Papista
Gail M. Towne
Kent L. Weichmann
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Carol F. Breitmeyer
Shon Cook
Hon. Richard B. Halloran
Mathew Kobliska
Vanessa Marie Moss-Wilson
Steven D. Reinheimer
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Expires 2018
Daniel B. Bates
James W. Chryssikos
Christopher J. Harrington
Kristen L. Robinson
Robert Charles Treat, Jr.
Randall L. Velzen
Tina M. Yost
2015-2016 Family Law Section Officers and Council Members
List of Council Meetings*
Saturday, June 4, 2016
Weber’s Inn, Ann Arbor
Annual Meeting
Thursday, September 22, 2016
DeVos Place, Grand Rapids
*All regular, monthly Council meetings start at 9:30 a.m. on Saturdays and
are preceded by a breakfast buffet starting at 9:00 a.m. The Annual Meeting
customarily starts at 9:00 a.m. with breakfast buffet at 8:30 a.m. Family Law
Section members who are not Council members are welcome at all Council
meetings. However, if you know you are going to attend a meeting, kindly send an
e-mail in advance so we are sure to have plenty of space and food. If a presenter
or member wishes access to audio-video equipment, please let us know 7 days
in advance.
—Carol F. Breitmeyer; breitmeyer@bcfamlaw.com
                
State Bar of Michigan
Family Law Section
Mission
The Family Law Section of the State Bar of
Michigan provides education, information,
and analysis about issues of concern
through meetings, seminars, its website,
public service programs, and publication
of a newsletter. Membership in the Section
is open to all members of the State Bar of
Michigan.
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List of Advertisers
Letters to the Editor
The Michigan Family Law Journal welcomes letters
to the Editor. Typed letters are preferred; all may be
edited. Each letter must include name, home address
and daytime phone number. Please submit your
letters, in Word format, to the Chair of the Family
Law Section, Carol F. Breitmeyer, c/o State Bar of
Michigan, Michael Franck Building, 306 Townsend
Street, Lansing, MI 48933, soudsema@mail.michbar.org
The Michigan Family Law Journal Endeavors to Establish
and Maintain Excellence in Our Service to the Family
Law Bench and Bar and Those Persons They Serve.
Editor:
Anthea E. Papista
Assistant Editors:
Sahera G. Housey • Lisa M. Damphousse • Ryan M. O' Neil
Editorial Board:
Daniel B. Bates • Amy M. Spilman
Shelley R. Spivack • James W. Chryssikos
Family Law Section Lifetime Achievement Award Winners................................................2
Family Law Section Mid-Summer Conference July 28 - 31, 2016......................................3
QDROExpress LLC, Attorney Robert Treat.......................................................................9
Barry Grant, CPA, CFF...................................................................................................12
ICLE —Family Law Institute...........................................................................................17
Family Law Mediation—Lippitt O’Keefe Gornbein, PLLC..............................................20
Great Lakes Honor Roll...................................................................................................21
Michigan Family Law Appeals, Scott Bassett....................................................................24
Kristen L. Robinson—Family Law Mediation..................................................................28
Family Law Political Action Committee...........................................................................29
FAMILY LAW SECTION “LISTSERV”
(E-mail Discussion Group)
The Family Law Section sponsors a “listserv,” which is “geek-speak” for an e-mail discussion group. To be eligible
to join, you must be a member of the Family Law Section or be a Michigan judge. If you are eligible and wish to
participate (it is a wonderful opportunity to share ideas and solve problems, not to mention communicating with many
fine colleagues), you may initiate your subscription to the Familylaw listserv by going to http://groups.michbar.org/
and click on FamilyLaw. Once there, fill out the form under “Subscribing to FamilyLaw” and follow the instructions. If
you have questions, contact Elizabeth A. Sadowski at sadowski@mindspring.com, or call her at (248) 652-4000.
The views, opinions and conclusions expressed in this publication are those of the respective authors and do not
necessarily reflect the position or opinion of the Family Law Section of the State Bar of Michigan.

On behalf of the Family Law Council, I am encouraging our membership and readers to consider
submitting an article to the Family Law Journal.
Article Contact Person: The primary contact person at the State Bar for Journal articles is Sue Oudsema
(517) 367-6423 and soudsema@mail.michbar.org. Article submissions should be e-mailed to Sue in Word
format. Please carbon copy me (aep@papistalaw.com) and Sahera Housey (houseys@oakgov.com) and
write “Article for the Family Law Journal” in the subject line when you submit your article.
Article Deadlines: Please submit your articles to Sue Oudsema at her email address above no later than
the last day of the month preceding the publication month. There are ten (10) published Family Law
Journal issues each year. June/July and August/September are combined issues.
Formatting and Links: Consistent with the Bar Journal’s practice, our formatting resource guide is The
Chicago Manual of Style (see www.chicagomanualofstyle.org). Please use endnotes for citations. Feel
free to include links in your endnotes, which will permit the reader to click — and then be directed to the
original source or reference.
Peer Reviewed: Authors are expected to have engaged another attorney to carefully review, critique,
and edit articles before sending to the Family Law Journal for consideration.
Bio & a Picture Please: All authors are requested to submit a short biography not to exceed 100 words
(similar to the Bar Journal) and photo to Sue in conjunction with your article.
Please Notify: If you are a first time author and wish to submit an article for possible publication, please
advise Sahera Housey or Anthea Papista. Please include a detailed description of your topic.
Editorial Board Discretion: The Editorial Board reserves the right to accept, reject, and edit all
submitted articles and Letters to the Editor. We shall endeavor to communicate any necessary
substantive changes to the author in advance of publication.
Very Truly Yours,
Anthea E. Papista
Journal Committee Chair
To All Prospective Family Law Journal Authors:

Michigan Family Law Journal 1May 2016
Chair Message
By Carol F. Breitmeyer - Family Law Section Chair 2015-2016
The intersect between family law, constitutional rights,
and the best interests of children viewed through the lens of a
child’s right to legal access to both parents currently presents
significant legal challenges in Michigan.
The nexis of intentional parenthood and the law reveals
serious fractures in our ability to protect some parent-child
relationships. Remember, heterosexual couples do not neces-
sarily have to intend to have a family, i.e., to produce chil-
dren. Heterosexual couples, whether married or unmarried,
can accidentally produce a child. This possibility does not exist
for same gender couples. Parenthood is always intentional for
same gender couples. While the motivation leading to the de-
cision may be identical, the route to obtaining a child is decid-
edly different in the vast majority of same gender situations.
The post-Obergefell v Hodges, 135 S Ct 2584,192 L Ed 2nd
609 (2015), world has not yet clarified the legal landscape for
intentional parenthood in Michigan.1
Mark Hills and Jeffrey Koelzer’s April article in the Fam-
ily Law Journal, “Same-Sex Marriage and the Expanded Eq-
uitable Parent Doctrine,” discussion of the equitable parent
doctrine in same-sex marriage has spawned my comments
this month.
If a heterosexual couple produce a biological child with-
out a marriage, clearly dad can file an action for custody with
or without an Acknowledgment of Parentage. He can seek an
Order of Filiation. Assuming he is the father, he will have the
ability to have access to his child post-breakup. It is a dif-
ferent situation for same gender couples. Post-breakup, if no
marriage or adoption occurred for the non-biological parent,
no ability to access parenting rights and responsibilities exists
today in Michigan.
The right to legal standing to pursue parental responsibil-
ity is something conventional two-gender parents don’t even
consider. This is the case whether there is a marriage, a brief
relationship, a long relationship (suspending all the problems
which arise relative to paternity in the event of infidelity,
etc.) or any combination. This fundamental right is available
to either parent, even when one is a total louse of a parent!
The parent and the child are automatically granted the full
panoply of parental constitutional privileges embodied in the
law. The right to request court intervention relative to medi-
cal, educational, or custodial issues are the practical bedrock
of parenthood. In Michigan, scores of unanswered legal ques-
tions remain unresolved in the wake of Obergefell.
Is it fair to require marriage for same gender couples to
obtain the same basic right of parentage opposite gender par-
ents have without marriage? The requirement that same gen-
der parties marry in order to have a shot at parental rights with
their child stands in stark contrast to that which is required for
heterosexual couples. While some readers may not care much
about this double standard, they will care about how it affects
the children in our society. Children should have the right to
two parents, it should not be our policy to disenfranchise a
parent without good cause.
The equitable parent doctrine has been expanded some-
what recently in the post-Obergefell world. The Michigan Su-
preme Court expanded the use of the equitable parent doc-
trine in a married same sex couple in Stankevich v Milliron,

2 Michigan Family Law Journal May 2016
498 Mich 877 (2015), by remanding to the Court of Appeals
which, in turn, found sufficient facts existed to establish the
plaintiff’s standing to seek the application of the equitable
parent doctrine. However, the use of the equitable parent
doctrine has been declined for unmarried same sex individu-
als recently in Kolailat v McKennett, unpublished opinion
per curiam of the Court of Appeals, issued December 17,
2015 (Docket No. 328333).
This divergent treatment between unmarried same-sex
couples related to unmarried heterosexual couples—vis-à-vis
their legal relationship to the child-ought to be addressed.
However, concerns regarding extending standing to “third
parties” also has merit. Careful crafting of an equitable par-
ent statute limiting claims to a very narrow class of people
could solve the problem without creating new ones. The eq-
uitable parent doctrine could be codified in a similar fashion
as D’Onofrio / MCL 722.31(4), setting forth a multi-factor
test. The expansion should include the narrow instances when
same gender couples, who chose not to marry or could not
marry because of the earlier law, lack access to the child.
Is a public policy which locks out one parent to the detri-
ment of their child in the child’s best interests? I suggest no.
The gravity of these instances require careful analysis as we
consider a change. Michigan has the opportunity to institute a
thoughtful, progressive law which will provide direct and swift
benefits to this class of parents and their children.
—Carol F. Breitmeyer
Endnotes
1 Another example of Michigan’s outdated laws relates to Assist-
ed Reproductive Technology (ART). Our 1988 law criminalizes
surrogacy. Senate Bill No. 8411 recently introduced would at
least bring Michigan into the mainstream. Senate Bill No. 8411
http://www.legislature.mi.gov/documents/2015-2016/billintro-
duced/Senate/pdf/2016-SIB-0811.pdf Currently the Michigan
law makes surrogacy contracts void and unenforceable. Any
compensation is prohibited and has harsh criminal sanctions.
There are two types of surrogacy: one is gestational and the
other traditional. Traditional surrogacy is where mother’s egg is
fertilized with a sperm donor or the intended father. The surro-
gate carries the baby until birth. Gestational surrogacy is where
the surrogate is not biologically related to the embryo or child.
The intended parents become the legal parents. Michigan’s
backward status combined with a lack of uniformity in the na-
tion related to surrogacy has led to very uneven and sometimes
tragic results. Uniformity throughout the country would inure
to the benefit of children. Surrogacy remains a largely unregu-
lated industry and Michigan is one of only three states only that
criminalizes surrogacy for pay.
FAMILY LAW SECTION
Lifetime Achievement Award Winners
1988–Norman H. Robbins 1988–Maxine Board Virtue 1991–Hanley M. Gurwin
1994–Henry Baskin 1999–Richard S. Victor 2001–Edward D. Gold
2003–Fred Morganroth 2005–Katherine L. Barnhart 2009–Ronald Bookholder
2011–Justice Marilyn Kelly 2012–Jon T. Ferrier 2014–John F. Mills
The Family Law Section expresses its gratitude and appreciation for those extraordinary family law attorneys
whose dedication, contributions, and leadership earned them the highest honor in Family Law: the Family
Law Section Lifetime Achievement Award.

FAMILY LAW SECTION MID-SUMMER CONFERENCE
JULY 28 – 31, 2016, Grand Traverse Resort
Thursday, July 28
5:00 – 9:00 p.m. Welcome Room – stop in, say hello to old friends, have a snack and a beer or
glass of wine and get last minute seminar, resort and area activity information.
Families welcome. Sponsored by Anne Argiroff http://mifamilyappeals.com/
Friday, July 29
8:00 a.m. Breakfast for seminar participants.
Sponsored by QDRO Express http://www.qdroexpressllc.com/
9:00 a.m. Referee Hearing Rules – Hon. Douglas Dosson, Roscommon County
10:00 a.m. Military Divorces – Peter Kulas, Kulas Law Office
11:00 a.m. Two Experts, Different Opinions, and How They’re Both Right – Jason Le-
Roy, Doeren Mayhew, and Ben Bershad, Stout Risius Ross
6:00 – 8:00 p.m. Cocktail Reception – Open bar and hors d’oeuvres in a delightful setting for all
seminar participants, family and guests.
Sponsored by:
• Polaris Greystone Financial Group http://www.polarisgreystone.com/;
• Stout Risius Ross http://www.srr.com/; and
• Doeren Mayhew http://doeren.com/
Saturday, July 30
8:00 a.m. Breakfast for seminar participants.
Sponsored by Speaker Law Firm http://www.michiganappellateadvocacy.com/
9:00 a.m. Spying on Your Spouse: A Review of Federal and State Wiretapping Laws –
Jude Pereira, Varnum, LLP, the materials sponsor for the Mid-Summer seminar
10:00 a.m. Taking the Proofs: A More Rational Basis – Hon. Richard Halloran, Wayne County
11:00 a.m. What Happens to My Kids if Something Happens to Me? - A Guide to
Third-Party Custody Disputes - Erika Wikander and Jennifer Johnson, Velzen,
Johnson and Wikander, PC
Register for the seminar with the State Bar http://e.michbar.org
For Resort reservations,
call the Grand Traverse Resort - 800-968-7352
ask for State Bar, Family Law section or
online at http://www.grandtraverseresort.com/

Introduction
Picture the scene:1
a distraught potential client – let’s call
him Charles – arrives at your office on a Monday morning
with freshly-inked divorce papers in hand. His wife – we’ll
call her Kim – came to the U.S. from China less than a year
ago after: (1) a brief online courtship;2
and (2) a spontaneous
weekend wedding in Las Vegas. Over the past few months,
Charles has spent close to $35,000 supporting Kim and her
eight year-old son.
Having conveniently received her Conditional Green
Card from United States Citizenship and Immigration Ser-
vices (USCIS) a short while ago, Kim has packed her bags,
moved out, and filed for divorce. Charles is beside himself. To
make matters worse, when Charles sponsored Kim for perma-
nent residency, he signed an Affidavit of Support known as
“Form I-864.” Under the I-864 Affidavit,3
Charles agreed to
support Kim and her son at 125% of the U.S. federal poverty
level,4
and to reimburse the federal government in the event
that either one of them ever makes a claim for public assis-
tance.5
Notably, Charles’ support obligation does not termi-
nate upon divorce.6
In fact, the I-864 support obligation can
potentially remain in effect for the duration of the immigrant-
spouse’s life(!) – even in the case of a short-term marriage.
Fortunately, it is not all doom and gloom for the Charle-
ses of the world. In fact, there are several issues that we as fam-
ily law practitioners can do to minimize the impact the I-864
Affidavit will have on our clients.
This article will provide a concise summary of a spon-
sor’s obligations under Form I-864, and then offer several
practice pointers to consider if and when this issue arises in
your practice.
Background
A sponsor’s responsibility under an I-864 Affidavit lasts
until one of the following five events occurs:
1. The immigrant-spouse becomes a naturalized U.S. citizen;
2. The immigrant-spouse has worked in the U.S. for 40
qualifying quarters (i.e., 10 years);
3. The immigrant-spouse leaves the U.S. and moves to an-
other country;
4. The immigrant-spouse seeks permanent residency under
another I-864;
5. The immigrant-spouse dies.7
In the absence of one of these events, a sponsor’s sup-
port obligation will remain ongoing and in full effect.8
Con-
sequently, by signing an I-864 Affidavit, a sponsor takes on a
potentially indefinite support obligation. The financial ramifi-
cations of this commitment cannot be overstated. Indeed, over
the course of a lifetime, our broken-hearted friend Charles’
obligation could easily exceed $1,000,000.9
The lone Michigan case to have addressed the I-864 in
the context of divorce proceedings is Greenleaf v Greenleaf.10
In Greenleaf, plaintiff-husband met defendant-wife on a trip
to Russia in June of 2007. They married not long after and,
in turn, plaintiff-husband signed an I-864 Affidavit on be-
half of his new bride.11
After roughly one year of marriage,
defendant-wife moved out of the marital home and filed for
divorce. Notably, in her complaint defendant-wife requested
support under the I-864, and a traditional award of spousal
support under MCL 552.23(1).
The Court of Appeals held that: (1) the I-864 Affidavit is
a valid contract and, therefore, can be enforced in divorce pro-
ceedings12
; and (2) an immigrant-spouse’s contractual rights
under the Affidavit do not impact or otherwise diminish her
statutory right to request an award of spousal support under
Michigan law.13
In short, Greenleaf underscores how wildly
expensive litigation involving an I-864 Affidavit can become.
Analysis
Annulment
Presumably, one’s first reaction to Charles’ plight would
be to file a counterclaim for annulment on grounds of fraud.
Under well-settled Michigan law, fraud can potentially serve
as the basis of an annulment. Specifically, pursuant to MCL
552.2, a marriage will be deemed void where:
The I-864 Affidavit:
Practice Pointers for Dealing with a Complex,
Confusing, and Potentially Very Costly Legal Document
By Mark S. Papazian and Geoffrey S. Wagner

[T]he consent of 1 of the parties was obtained by force
or fraud, and there [was] no subsequent voluntary
cohabitation of the parties. [Emphasis added.]
However, in order for fraud to rise to the level necessary to
support an order of annulment, the fraud must be “of a nature
wholly subversive to the true essence of the marriage relation-
ship.”14
Clearly, this is a difficult standard to meet.
The problem Charles will encounter in trying to
prove fraud stems from the fact that, as part of the immigra-
tion process, he was required to provide ample evidence of his
marital relationship with Kim (e.g., pictures/love letters/etc.)
to USCIS. As one commentator has noted,15
this can make it
exceedingly difficult to prove fraud in I-864 cases:
Whilemanybroken-heartedU.S.citizensorpermanent
residents ask their attorneys to obtain annulments
because they claim their foreign spouses only married
them for their green cards, it is the rare case that can
be proven in court that a true fraud occurred to
deceive the American spouse about entering into a valid
marriage. This can be even more difficult where the
American spouse has filed immigration papers and
provided testimony to USCIS to prove the validity of
the marriage. [Emphasis added.]
In short, proving the essential elements of annulment in
these types of cases will always be a tall order.
Waiver/Release
In our view, the most effective way to deal with future li-
ability under an I-864 is to obtain a contractual waiver/release
from the immigrant-spouse. For ease of reference, the release
we used in a case last year is set forth below in its entirety:
1. IN CONSIDERATION of the payments made to her in
this Judgment of Divorce, the receipt of which is hereby
acknowledged, WIFE, being of lawful age, does hereby
release and forever discharge HUSBAND from any and
all claims, actions, causes of action, demands, damages,
costs, and compensation on account of, or in any way
arising out of, the I-864 Affidavit previously executed by
Husband on behalf of Wife.
2. IT IS expressly understood and agreed that this waiver
of rights under the I-864 is permitted under federal and
state law, viz.
• 71 Fed. Reg. 35732, 35740 (June 21, 2006) (not-
ing statement by the Department of Homeland Se-
curity (DHS) during the I-864 rulemaking process
that a beneficiary may elect to waive his/her right to
enforcement of the Affidavit of Support);
• Blain v Herrell, 2010 WL 2900432; Civ. No. 10-
00072 (D. Haw. 2010) (holding that immigrant-wife
waived her right to enforce the I-864 by stipulating to
the waiver in the parties’ prenuptial agreement);
• Port Huron Ed. Ass’n v Harding Glass Co., 452
Mich 309, 319; 550 NW2d 228 (1996) (noting the
“fundamental policy of freedom of contract,” pursu-
ant to which “parties are generally free to agree to
whatever specific rules they like”).
3. IT IS FURTHER UNDERSTOOD AND AGREED
that WIFE agrees to indemnify and hold HUSBAND
harmless from any and all past, present, and future claims
of any kind, whatsoever, made against HUSBAND by the
United States Government related to the parties’ I-864.
4. THIS release contains the ENTIRE AGREEMENT be-
tween the parties with respect to WIFE’S past, present,
and future rights arising under the I-864, and the terms of
this release are contractual and not a mere recital. WIFE
has CAREFULLY READ this release, fully understands it,
and signs this release freely and voluntarily.
Of course, as with any other negotiation, you may have
to give something up – i.e., in our case, the concession was
minimal short-term spousal support for one year – in order to
obtain a similar waiver; however, the peace of mind your cli-
ent will obtain as a result of the finality a release provides will
almost certainly be well worth the trade.
Challenges to the Waiver/Release
It should be noted that several courts have held that waiv-
ers like the one set forth in the preceding section of this Article
are invalid.16
However, the rationale of those decisions is spe-
cious at best. First and foremost, the “anti-waiver” decisions
completely ignore the pertinent Federal Regulation,17
which
states unequivocally that a beneficiary can, in fact, elect to
waive her right to enforcement of the Affidavit. Second, the
decisions also overlook the bedrock principle of freedom of
contract,18
pursuant to which the parties are “generally free
to agree to whatever specific rules they like.” Thus, to the ex-
tent that your opponent—or, alternatively, your judge—might
question the legality of your request for a waiver, you can use
the authorities set forth in this Article to respond forcefully on
behalf of your client.
Conclusion
The I-864 Affidavit is a complex legal document that, to
date, has received only scant attention in the pertinent case
law. Given the potentially indefinite nature of the applicable
support obligation, it is important to gain a basic understand-
ing of the I-864 so it can be dealt with effectively. We hope
the practice pointers discussed in this Article will prove to be
helpful if and when this issue arises in your practice.

About the Authors
Mark S. Papazian is a partner at Giarmarco, Mullins &
Horton, P.C., a full-service law firm located in Troy, MI. His
practice is litigation-based with an emphasis on Family Law,
Business Litigation and Entertainment Law. He was admitted
to practice in 1974 and has tried cases throughout the State of
Michigan. Mark has represented many clients who are either
the chairmen of Fortune 500 companies, or highly placed execu-
tives, in the Oakland and Wayne County Circuit Courts. He has
been recognized by dBusiness as a top lawyer since 2010, and as
a Super Lawyer since 2011. Mark has an “AV” peer rating from
Martindale-Hubbell, and was recently named a Leading Lawyer,
a prestigious honor reserved for the top 1% of the legal profession.
Geoffrey S. Wagner is a partner at Giarmarco, Mullins &
Horton, P.C. He has a decade of experience in the areas of busi-
ness litigation, family law and personal injury, at both the trial
and appellate levels. Geoff has an “AV” rating from Martindale-
Hubbell, and was recognized as a “Rising Star” by Super Lawyers
in 2013, 2014, 2015 and 2016. He is a graduate of Boston
University, magna cum laude, and Wayne State University Law
School, cum laude; Order of the Coif.
Endnotes
1 The hypothetical presented in the Introduction to this Article is
based on an actual case Messrs. Papazian and Wagner litigated
in 2015; however, the parties’ names have been changed to pro-
tect their rightful privacy.
2 According to a 2016 study conducted by the Pew Research
Center, at least 5% of all Americans who are currently in a
marriage or committed relationship met their significant other
online. See http://www.pewresearch.org/fact-tank/2016/02/29/5-
facts-about-online-dating/ .
3 See Form I-864, Affidavit of Support, available online at: https://
www.uscis.gov/sites/default/files/files/form/i-864.pdf.
4 See https://www.healthcare.gov/glossary/federal-poverty-level-FPL/
(last visited on 3/23/16). As of the writing of this Article,
Charles’ yearly support obligation under the Affidavit would be
roughly $16,000.
5 A number of courts have stated that the basic purpose of the
Affidavit is “to ensure that immigrants do not become a public
charge.” See e.g., Ainsworth v Ainsworth, 2004 WL 5219036, *
4; No. 02-1137-A-M2 (MD La Apr 29 2004).
6 See Hrachova v Cook, 2009 WL 3674851, * 3; No. 5:09-cv-
95-Oc-gRJ (M.D. Fla Nov. 3, 2009) (“the view that divorce
does not terminate the obligation of a sponsor has been recog-
nized by every federal court that has addressed the issue”); See
also Greenleaf, infra at Note 9 (“divorce does not terminate [the
sponsor’s] obligations under [the] Form I-864”).
7 See 8 U.S.C. § 1183a(a)(2), (3).
8 Incidentally, the courts have found that an immigrant-spouse
has no duty to mitigate her damages by seeking employment.
See Liu v Mund, 686 F.3d 418 (7th Cir 2012).
9 See Note4,supra(assumingayearlycostofroughly$16,000.00).
10 2011 WL 4503303; Dkt No. 299131 (Mich Ct App, Sept. 29,
2011).
11 Id. at * 1.
12 Id. at * 3 (citing Younis v Farooqi, 597 F Supp 2d 552, 554 (D
MD, 2009); Shumye v Felleke, 555 F Supp 2d 1020, 1023-24
(ND CA, 2008); Naik v Naik, 399 NJ Super 390, 395-98; 944
A.2d 713 (2008); Moody v Sorokina, 40 AD.3d 14, 18-19; 830
NYS 2d 399 (2007).
13 Id. (explaining that “plaintiff’s equitable obligation to pay spou-
sal support under appropriate circumstances is separate and
distinct from his contractual obligation imposed by the Affida-
vit of Support . . . .”). Put another way, this is a situation where
a sponsor faces the very real risk of being ordered to pay two
different support awards.
14 Stegienko v Stegienko, 295 Mich App 530, 535; 295 NW 252
(1940); See also Rodenhiser v Duenas, 296 Mich App 268, 272;
818 NW2d 465 (2012) (the party seeking an annulment must
provide “clear and positive proof” that the marriage was not
valid).
15 See Jonathan S. Greene, Unfortunate Fairy Tale: Unhappy Mar-
riage Of Immigration And Family Law, 41-Oct Md. BJ 4, 7
(2008).
16 See e.g., Toure-Davis v Davis, 2014 WL 1292228; WGC-13-
916 (D. Md. March 28, 2014) (rejecting attempted waiver of
I-864); Erler v Erler, 2013 WL 6139721; CV-12-02793-CRB
(N.D. Cal. Nov. 21 2013) (similar).
17 See 71 Fed. Reg. 35732, 35740 (June 21, 2006); See also Greg
McLawsen, The I-964 Affidavit of Support: An Intro to the Im-
migration Form You Must Learn To Love/Hate, 48 Fam. L.Q.
581 (Winter, 2015) (relying on the text of pertinent Federal
Regulation and referring to cases like Toure-Davis and Erler as
“confounding”).
18 See Port Huron Ed. Ass’n v Harding Glass Co., 452 Mich 309,
319; 550 NW2d 228 (1996).

MEDIATION MATTERS
The Mediator Code
By Shon Cook
In February 2013, the Office of Dispute Resolution of the
State Court Administrative Office of the Michigan Supreme
Court (affectionately known as the ODRSCAOMCA), issued
Mediator’s Standards of Conduct. As mediators, we should
all know and love these standards and be well-versed. But a
review can always be helpful, and if broken down into its basic
parts, they are easy to remember.
1. Self-determination:
While a mediator can offer direction and options, he or
she must stop short of telling parties what to do and how to
do it. Mediators should never argue their own position or
advocate for the position of either party. The parties must
reach their own agreements without any coercion or forced
direction from the mediator. Simply put, resist the urge to
control the process. This does not mean a mediator cannot
caucus or ask questions that might help a party realize a
potential problem or find a potential solution.
2. Impartiality:
Don’t like one party better, or one attorney better. If
you do, don’t show it. And most important, be aware that
it may bias you. The parties must believe at all times that
the mediator is not on anyone’s side and is simply there to
reach resolution without judgment or favoritism. If you
actually feel that you cannot be impartial due to a very
strong hostility or dislike of a party, you must withdraw.
3. Conflicts of Interest:
Avoid the appearance of impropriety at every turn.
If you have a special relationship or friendship with one
of the attorneys or parties, you must disclose it, and in
some circumstances, you should probably not be the me-
diator. In Hartman v Hartman, MI Ct of Appeals NW2d
304026; 2012 Mich. App. LEXIS 1554, (Ct App, Aug. 7,
2012), the Court of Appeals did not set aside the media-
tor/arbitrator settlement agreement, but certainly raised
significant questions about the mediator/arbitrator’s vaca-
tion with defense counsel and the appearance of a conflict
of interest. The Court held that no evidence of clear or
actual bias was proven. But, it would be hard to convince
the plaintiff that a fair deal was reached in the course of
the mediation or that the mediator/arbitrator was neutral.
4. Mediator Competence:
Get trained. It is incredibly important to understand
different mediation techniques and the role that domestic
violence and power struggles play out in mediation. You
also need to have decent social skills, with the ability to
listen and understand the pain that individuals are going
through as they try to resolve their conflicts.
5. Confidentiality:
Your confidentiality agreement needs to be in writing
and explained at the beginning of every mediation. One
of the huge benefits of mediation is the ability of parties
and their attorneys to disclose information that actually
resolves cases, rather than escalate the litigation. The si-
lence of the mediator is a powerful force in learning what
really motivates a party to resolve conflict. The confiden-
tiality must be kept unless:
a. You are subpoenaed, the parties waive the confidenti-
ality, and the judge, orders the testimony.
b. There is information of harm to a child, vulnerable
adult, or safety issues to other individuals in the home
that could result in immediate harm.
c. You are filing the boring little mediation status re-
port, or notice of mediation.
6. Safety of Mediation:
Screen for safety. Use the domestic violence protocol
and make each party independently fill it out before they
meet with you to truly evaluate if there is a domestic vio-
lence concern. The court form that is submitted is simply
not enough to give a true evaluation of how parties com-
municate and resolve conflict, or if there has been past
domestic violence, which includes emotional abuse. Me-
diate in separate rooms, if necessary. If you sense someone
about to escalate to a boiling point, stop it in a calm and

serious way and provide separate rooms, exits and places
for parties to regroup and regain composure.
7. Quality of Process:
Be ready to wait and sit. Mediation is not a race. Ev-
ery person comes to decision making in his or her own
way and at their own pace. Be prepared for silence, hostil-
ity, and some yelling. Listen to proposals and stories that
might not make sense, but are part of the exploration
and understanding process. Try to maintain civility, and
ask everyone to use inside voices when things get heated.
Conflict can promote resolution, if done carefully. Ask
questions that get people thinking about outcomes.
Have an agreement to mediate that outlines your job,
the attorneys’ jobs, the fees, confidentiality, and the length
of each mediation session. If you feel that someone cannot
understand or respect the process, don’t conduct the me-
diation. Don’t force an agreement, or make assessments
about what a judge or referee would or would not do.
8. Be neutral:
Don’t wince, flinch, growl, or let out huge sighs at
peoples’ positions and thoughts. If parties are talking, that
is usually a positive direction. Don’t judge an agreement
that the parties enter into based upon your own bias or ex-
perience. Only intervene in an agreement if you sense that
it is done out of fear of safety. Make sure everyone in the
room clearly understands your role as a mediator, not an
attorney or counselor or private investigator. If for some
reason, you are asked what a judge would do, or what a
party should do, you must be clear that you cannot give
that advice.
9. Advertising and Solicitation:
Mediators may not call themselves “certified media-
tors.” The advertising simply may state that the mediator
has taken certain training. The mediator cannot promise
results or guarantee resolution or agreement. The media-
tor can indicate what types of cases are mediated, the
years of mediating, and the training received to medi-
ate. The advertising cannot promise results or guarantee
agreements.
10. Fees:
Put your fee agreement in writing and send to clients/
attorneys in advance of mediation. Discuss at the begin-
ning of mediation the fee structure and have the parties
determine how the mediation fees will be paid. Put the
fee arrangement in the actual mediation agreement. And,
under no circumstances may there be a contingency fee
agreement based upon the results at the mediation.
11. Advancement of Mediation:
As mediators, we have an obligation to promote reso-
lution and agreement and try to reduce conflict. Stand on
a mountain and shout out the fact that mediation is so
much better than litigation for families. Help to train,
observe, and better the mediation profession. We need
good mediators, and good mediations, and good agree-
ments that our esteemed courts of higher knowledge will
accept and endorse, so that parties can rely on our services
and reach finality in their conflicts.
Now go forward and serve the Code.
About the Author
Shon Cook has been practicing family law for twenty years
and is finally starting to get it right. With a combination of hu-
mor, negotiation, decent people skills and the ability to still throw
down a good legal objection or two, Shon has deemed herself “The
Good Witch of the Law.” Shon is determined to help people in a
positive way get through the worst times of their life and give back
some respect and dignity that the legal process seems to erode. Shon
is the owner of Shon Cook Law, PC, which operates out of a very
cool building in Whitehall, Michigan, which was the first library
in the city. Shon Cook Law, PC has a total of three attorneys
covering Family Law, Bankrutpcy, Estate Planning, Real Estate
and Business Formation.

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The Helper In Need Of Help:
When A Lawyer Experiences Domestic Abuse
By Marla Linderman and Tish Vincent
Introduction
The State Bar of Michigan Lawyers and Judges Assistance
Program helps attorneys maintain their licenses, if the grieved
behavior can be explained by the presence of a mental health
disorder or substance abuse problem. There is no such pro-
gram to help attorneys who have survived domestic violence.
This article will explore the need for such a program and a
path to encourage support in the legal community.
In February, 2016, the American Bar Association Com-
mission on Lawyers Assistance Programs, partnering with Ha-
zelden/Betty Ford, published its report on a comprehensive,
peer reviewed research project studying the mental health of
lawyers.1
The results confirmed that lawyers battle higher levels
of depression, anxiety, and substance use disorders than other
equally educated individuals. The research study also inquired
about lawyers’ comfort level seeking professional help for
these conditions. Lawyers reported hesitation about seeking
help for their emotional and mental problems for two reasons.
First, they feared that admitting the need for help would dam-
age their reputation. Second, they feared that confidentiality
would not be protected.
Law school, legal training, and the practice of law encour-
age and reward critical thinking, perfectionism, aggressive
competition, and pride in distinguishing oneself as a respected
practitioner. Those who successfully graduate from law school
and pass the bar exam often equate their worth and success to
their identity as lawyers. A lawyer struggling with an illness,
mental illness, addiction, extreme stress, or being the target of
domestic violence may attempt to deal with her/his difficulties
alone due to a belief s/he should be self-sufficient and a con-
cern that s/he may seem weak if s/he seeks help, ruining her/
his reputation and identity as a lawyer.
This article seeks to explore the nature of the unique is-
sues faced by attorneys experiencing domestic abuse who seek
assistance from the judicial community and to offer new ap-
proaches from the bench and bar to provide support to our
colleagues during a difficult time.
Lawyers Who Are Survivors Of Domestic Violence
Studies of lawyer wellness and stress management indicate
that when lawyers begin to experience high levels of stress they
often isolate from others, work more, and pressure themselves
to cope with the stress on their own.2
Pressure to appear competent and impervious to stress
may emanate from the particular area of practice chosen. For
example, family law attorneys may fear admitting they are the
target of domestic violence by a partner. These lawyers may
worry that their own competence to handle divorce cases will
be questioned for being unable to handle their own family
problems.
Lawyers who seek Personal Protection Orders or file for di-
vorce are in the unique position of needing to share their per-
sonal matters with professional colleagues. In discussions on this
issue, lawyers have shared that they found this quite stressful.
Their prior dealings with fellow attorneys, judges, and court
staff may have resulted in personality conflicts that caused them
to feel uncomfortable. Even when there are no such difficulties,
the fear of colleagues and coworkers knowing the lawyer’s most
private details, and appearing in front of a judge familiar with
the specifics of the lawyer’s personal relationship can create bar-
riers preventing lawyers from seeking help.
Another challenge described by attorney survivors of do-
mestic violence is being told not to state her profession in the
therapy group. One attorney survivor of domestic violence re-
counted how her facilitator explained that if the lawyer admit-
ted she was a lawyer to the other women in the group, it would
distort the therapy process. The facilitator predicted that the
other women would start asking for legal advice and possibly
representation instead of staying within the therapeutic jour-
ney. This could isolate the attorney survivor and deprive her of
productive therapy.
Attorneys Murdered By Spouse Or Significant Other
On December 6, 2011, Lara Herrington Stutz, a Michi-
gan attorney and former President of the Lapeer Count Bar
Association, was murdered by her husband in the family home

in front of the couple’s three children.3
He then took his own
life. Her coworkers were surprised. She had kept this turmoil
from them. Speaking of this tragic loss, a staff attorney at Legal
Services of Northern Michigan stated, “. . .as lawyers, we’re a
little less likely to admit defeat. . . [the personal problems of a
prominent professional] are more likely to end up in the news-
paper, especially if the situation is slightly seedy or sordid.”4
In preparing to write this article the authors performed a
search to find Lara Herrington Stutz’s name. To their surprise,
the search revealed numerous accounts of attorneys who had
suffered the same fate as Lara Herrington Stutz: On Febru-
ary 20, 2009, Chiquita Tate, a Louisiana criminal defense at-
torney, was stabbed to death in her Baton Rouge, Louisiana
office. Her husband of 14 ½ months was convicted of her
murder. Her colleagues and neighbors were unaware that the
couple was having trouble. Court records indicated that her
husband was charged with using “force and violence” against
Tate in late 2007.5
• In February, 1992, James Cooney, a prominent Florida tax
attorney, was shot and killed by his wife, Linda Cooney.
Linda Cooney was acquitted of murder charges based on
self-defense. The couple was in the process of a divorce
and engaged in a bitter custody battle. In June, 2011, the
couple’s son Kevin, thirty years old at that time, was shot in
the neck and paralyzed.6
In July, 2014, Linda Cooney was
convicted of attempted murder charges in this incident.7
• On October 19, 1988, Carol Irons, a district court judge
and Kent County’s first female judge, was fatally shot in
her chambers by her estranged husband, Clarence Ratliff,
an off-duty police officer. Her chief judge shared that he
had no knowledge of violence in this marriage. He knew
the couple was divorcing but Judge Irons had not ex-
pressed any fear of her estranged husband.
Victims Or Survivors
There is concern in the domestic violence services com-
munity that using the label “victim” to describe those experi-
encing domestic abuse increases their feelings of powerlessness
and shame. Rather, the term “survivor” is used in recognition
of the fact that individuals experiencing domestic abuse have
developed coping mechanisms that enable them to survive.
There is wisdom in this distinction. Yet, surviving domestic
violence is a process, and those mired in the process, living
with this potentially lethal situation, need support to become
survivors. Barriers in the legal community impeding the sur-
vival process need to be identified and removed.
It is important to share the stories of lawyers who are sur-
vivors. According to one survivor, her request for a Personal
Protection Order was denied and subsequently her ex-husband
held a gun to her head in her law office. She survived, but the
legal system’s failure to adequately respond to her request for
protection could have easily resulted in her being a victim of
domestic violence rather than a survivor.
In the interest of full disclosure, your author, Marla Lin-
derman, is also a survivor of domestic violence who struggled
in full view of the legal community during her tenure as presi-
dent of the Women Lawyers Association of Michigan. Ulti-
mately, she was offered support from colleagues in the judicial
system, yet part of the trauma of coming forward was realiz-
ing that her peers knew about her personal circumstances and
wondering to what extent it impacted their view of her as an
attorney. As Marla’s ordeal became public, other lawyers expe-
riencing domestic abuse contacted her for support and Marla
approached the Women Lawyers Association of Michigan,
which created its Domestic Violence Committee to develop a
process to help lawyer survivors of domestic violence.
Domestic Violence Interventions
Domestic violence is a serious threat. Domestic violence
survivors need to accept that perpetrators do not assault and
batter because they have a mental illness or a substance use
disorder. Those are excuses for behaviors that perpetrators
choose to engage in to obtain and maintain control over their
partners. Perpetrators assault and batter because they refuse to
respect other human beings and refuse to obey the law. Tar-
gets of this criminal and non-criminal abusive activity need
to recognize it as such and turn to those professionals who
can assist in empowering them to leave the relationship and
stay involved with the service delivery system, including the
judicial system, sufficiently to protect themselves and their
children. Redefining oneself as a survivor of domestic violence
empowers a person to see that she is not at fault and that there
are services in the community to assist her in leaving the rela-
tionship, finding safety, and healing from the trauma.
In June, 1998, the Governor’s Task Force on Batterer In-
tervention Standards released its report, Batterer Intervention
Standards for the State of Michigan.8
This report defines domes-
tic violence as:
. . .a pattern of controlling behaviors, some of which
are criminal, that includes but is not limited to
physical assaults, sexual assaults, emotional abuse,
isolation, economic coercion, threats, stalking and
intimidation. These behaviors are used by the batterer
in an effort to control the intimate partner. The
behavior may be directed at others with the effect of
controlling the partner.
Domestic violence is not a symptom of a mental illness
or a substance use disorder. It is critically important to grasp
this point. Some individuals in the general population and
some heathcare providers believe that domestic violence is a
symptom of these other conditions. This is dangerous because

those who believe it operate under the assumption that if the
mental illness or substance use disorder is treated, the domes-
tic violence will cease. This mistaken belief is not supported
by evidence. Treatment of a mental illness or substance use
disorder can leave the batterer more focused on his/her goal of
controlling his/her partner.
Some batterers do kill their target(s) as we see in the cases
presented above. The referenced BIS reports 13 indicators of
lethality,9
including: those who exhibit rage toward their target
for thinking of leaving or trying to leave; those who feel they
“own” their partner; those who have a history of intervention
by law enforcement; those with weapons; those who have men-
tal health problems, particularly severe depression; and those
who have substance use disorders, particularly those who are
intoxicated at the time of the assault, who are more likely to kill
their partner or children. The Batterer Intervention Standards
(BIS) are extremely clear that interventions with batterers must
involve confronting their abusive and controlling behaviors to-
wards their partners and children; promote responsibility for
their own actions; develop awareness of the effects of violence
and abuse on partners and children; and teach them non-abu-
sive and responsible ways of treating partners and children.
The BIS warn that any treatment modality which blames
the survivor is inappropriate, not helpful, and dangerous.
They warn against couple and family counseling in domestic
violence cases because these modalities can reinforce power
differences and leave survivors at a disadvantage. They also
warn against alternative dispute resolution in domestic violence
cases. ADR is based on each participant having equal bargain-
ing power. The batterers have exercised control over their targets
which puts them on unequal footing. They also warn against
any intervention which does not address battering as the prima-
ry problem. Addictions treatment, psychodynamic treatment,
and systems approaches that see the battering as secondary to
some other primary cause are damaging. When seeking a pro-
gram for holding a batterer accountable, it is imperative that re-
ferrals be sought from the county and state agencies that oversee
programs’ adherence to the standards set out in the BIS.
Trauma Survivors
Survivors of domestic violence are trauma survivors.
Many of the cases that attorneys and judges deal with entail
violence and trauma sufficient to diagnose the individuals as
meeting criteria for Posttraumatic Stress Disorder. In the Di-
agnostic and Statistical Manual of Mental Disorders (DSM5),
that trauma is defined as:
• Exposure to actual or threatened death, serious injury, or
sexual violence in one (or more) of the following ways:
• Directly experiencing the traumatic events.
• Witnessing, in person, the event(s) as it occurred
to others.

• Learning that the traumatic event(s) occurred to a
close family member or close friend. In cases of actual
or threatened death of a family member or friend, the
event(s) must have been violent or accidental.
• Experiencing repeated or extreme exposure to aversive
details of the traumatic event(s).10
It is important for attorneys and judges working with do-
mestic violence survivors to be mindful of the special needs of
these trauma survivors. Trauma survivors experience impair-
ment in their ability to take in and process information for
a time. They may look to legal professionals as rescuers and
expect the law to save or defend them. They may display ex-
treme vulnerability and need someone to talk to who has the
appropriate skills to offer support, yet be able to convey the
truth the circumstances and what needs to be done to cope with
them. It is advisable to refer domestic violence survivors to a
mental health professional who has experience and training
with this issue.11
Lawyers experiencing domestic violence may
also be trauma survivors. In addition to the trauma responses
described, lawyers require additional support from the legal
community in order to continue to function as effective, car-
ing professionals.
Family law attorneys and family law judges are also at risk
to develop Vicarious Traumatization or Secondary Trauma
from hearing the details of so many trauma survivors.12
The
legal professional may start to develop the symptoms of Post-
traumatic Stress Disorder themselves. This has been identified
in attorneys and judges, especially those who work with vio-
lent crimes and domestic violence. This development can lead
to legal professionals who lose their objectivity and get too
involved with the parties’ problems. It can also lead to legal
professionals becoming judgmental and withdrawing from the
parties’ problems, distress and needs, resulting in negative con-
sequences for the legal professional and those they serve.
Assistance For Attorney Survivors From
The Legal Community
Collaboration
To whom can attorneys turn when they are experiencing
domestic violence? Seeing the coverage of the attorneys who
were murdered by their spouses and the shock of the legal com-
munity in response, it is concerning that these lawyers did not
feel comfortable reaching out for help. A consistent theme is
that coworkers and family had no knowledge that there was
trouble. What steps could be taken by the legal profession and
the justice system to provide accessible interventions which rec-
ognize the impact of domestic violence on attorney survivors?
The Lawyers and Judges Assistance Program (LJAP) at the
State Bar of Michigan (SBM) supports Michigan legal profes-
sionals and works to optimize their general wellness through
education, free consultations, clinical assessments, and refer-
rals to properly trained, credentialed, and effective providers.
LJAP establishes and maintains a panel of attorney volunteers
who meet with other attorneys in need of help with substance
issues or mental health concerns.
The Women Lawyers Association of Michigan is a state-
wide organization of women attorneys, judges, and law stu-
dents. WLAM’s mission is to “advance the interest of women
members of the legal profession, promote improvements in
the administration of justice, and promote equality and social
justice for all people.”13
Throughout the year the seven chap-
ters of WLAM work to provide service to women and fami-
lies, to recognize excellence in their ranks, and to advocate for
women in the legal profession and for all women and society.
The State Bar of Michigan’s Domestic Violence Committee
is charged with the tasks to “[m]ake recommendations concern-
ing increasing attorney awareness of the problem of domestic
violence; advise on the encouragement of training of attorneys
and judges on legal remedies and community resources con-
cerning domestic violence; help develop and distribute legal re-
sources concerning domestic violence and victims’ access to the
legal process; assist in the coordination of programs and activi-
ties concerning domestic violence in Michigan.”
The authors of this article see a place for collaboration be-
tween LJAP, WLAM, and the Domestic Violence Committee
to identify and address the needs of law students, attorneys,
and judges who are the targets and survivors of domestic vio-
lence and in need of help. As lawyers, our competition with
our peers and belief that we should be the problem solvers may
make us loath to admit we are in trouble and need help. Yet
our decision to deal with such a desperate situation without
assistance may be the death of us.
We are suggesting that WLAM and the Domestic Vio-
lence Committee partner with LJAP to develop attorney vol-
unteers who have experienced domestic violence and have
moved through the experience to a state of health. We are also
suggesting that the LJAP staff familiarize themselves with the
resources specific to domestic violence survivors that are ap-
proved by the state and local governments to be ready to prop-
erly refer individuals in need of help. Attorney survivors could
trust that their information and circumstances would be kept
completely confidential by the LJAP staff. LJAP is–and should
be–a place in the state where attorneys can turn for personal,
confidential help.
Court Responses
Discussions with attorneys identified two issues most dis-
tressing to attorney survivors of domestic violence. First, there
can be responses from judges, other attorneys, or court person-
nel that are unhelpful and indicative of the myth that well-ed-
ucated, professional women are immune from abuse. Second,

the difficulties that originate in a domestic violence situation,
should be cause for flexibility to allow for completion of work
within the reasonable time frames.
This article serves to raise issues and invite input about pos-
sible solutions. Solutions to the first distressing issue could be
addressed through education of family law judges and their per-
sonnel about the impact of trauma on survivors and of vicarious
trauma on court staff. Vicarious trauma can lead professionals
to err on the side of rescuing survivors of domestic violence, or
becoming judgmental and withdrawing from them to protect
the professional from feelings that are triggered by the circum-
stances and needs of the survivor in front of them.
A solution to the second distressing issue could be cre-
ation of procedures to allow the attorney domestic violence
survivor to approach the court and request an extension. For
the attorney who is fearful that her abuser may be stalking her,
additional procedures could include removing the attorney’s
name from public dockets.
Conclusion
We hope that resources can be dedicated to reaching out
effectively to those in need. Knowing that attorney survivors
have been able to continue in their legal careers with their
reputations intact and as public figures will hopefully calm
fears of other attorneys and help them come forward and seek
help from authorities, courts and their peers.
About the Authors
Marla A. Linderman owns Linderman Law PLLC, a firm
that concentrates in employment law representing both employ-
ees and employers, and also plaintiff-side auto and personal in-
jury law. She was President of the Women Lawyers Association of
Michigan in 2013-2014 and was also President of theWashtenaw
Association for Justice from 2011-2013. She has been named a
Top 25 Women Consumer Lawyer by Super Lawyers since 2013.
Tish Vincent is the Program Administrator of the Lawyers
& Judges Assistance Program at the State Bar of Michigan. Tish
is a clinical social worker with twenty four years of experience as
an addictions therapist. She is also an attorney. She practiced in
the areas of Health Law and ADR until taking a position with
SBM. She is a past Vice President of the Mid-Michigan Chap-
ter of the Women Lawyers Association of Michigan from 2011
through 2014.
Endnotes
1 ABA CoLAP, Hazelden/Betty Ford research study.
2 Vincent, T. Stress Management: Healthy vs. Unhealthy. Practicing
Wellness. Michigan Bar Journal. July, 2012.
3 Reiz, RM, EverythingWill Be OK, Michigan Bar Journal, Febru-
ary, 2014.
4 Id at 15.
5 Johnson, Craig. Lawyer Stabbed 38 Times;Husband Held. CNN.
March 28, 2009. http://www.cnn.com/2009/CRIME/03/28/loui-
siana.lawyer.slain/
6 Woman Who Killed Ex-Husband Now Accused of Shooting Son.
Palm Beach Post. Nov. 7, 2011. http://www.palmbeachpost.
com/news/news/crime-law/woman-who-killed-ex-husband-now-
accused-of-shoot-1/nLzSK/
7 McCabe, F. Las Vegas Mom Sentenced to Prison for Shooting, Par-
alyzing Son. July 9, 2014. http://www.reviewjournal.com/news/
las-vegas/las-vegas-mom-sentenced-prison-shooting-paralyzing-son
8 Batterer Intervention Standards for the State of Michigan. June
1998. http://www.biscmi.org/aboutus/michigan_standards.html
9 Id., BIS Appendix A: Lethality Evaluation.
10 Diagnostic and Statistical Manual of Mental Disorders, Fifth
Edition.(DSM-5). American Psychiatric Association. 2013. P
271.
11 Buzolits, J and Rogers, L. Trauma Informed Practice in Family
Law Cases. February 2013.
12 See for example Andrew P. Levin and Scott Greisberg, Vicari-
ous Trauma in Attorneys, 24 Pace L. Rev. 245 (2003), and Peter
Jaffe, Claire Crooks, Billie Lee Dunford-Jackson, & M. Town,
Vicarious Trauma in Judges: The Personal Challenge of Dispensing
Justice. 54 Juv. & Fam. Ct. J. 1-9 (2003).
13 Women Lawyers Association of Michigan. https://womenlaw-
yers.org/new/

Stephanie Kathleen Kaeb -vs- Darin Lee Kaeb
For Publication March 12, 2015
The Case of the Issue
By Henry S. Gornbein
The Issue
Proper cause and payment of attorney fees.
Statement Of Facts
The parties had three children. A divorce complaint was
filed in December 2009. A judgment of divorce was entered in
July 2010. The Judgment granted joint legal and physical cus-
tody to the parties, with the children residing primarily with
the Plaintiff mother during the school year and the Defendant
father having extensive parenting time during the school year
and equal parenting time during summers.
In March 2011, the mother sought modification of cus-
tody based upon the fact that the father had serious alcohol
and gambling problems and possibly mental health issues,
which impaired his ability to provide care and custody to the
children. There was a stipulated order changing custody in
September 2011 granting Plaintiff mother sole legal and sole
physical custody and providing Defendant father with very
limited supervised parenting time. He was also ordered to
complete alcohol treatment and therapy, comply with all af-
tercare treatment recommendations, and was to abstain from
the use of alcohol. In February 2012, a new order was entered
requiring father to continue alcohol treatment and therapy
and stating that he could petition for modification after three
months of compliance with the schedule and requirements.
In July 2012, Defendant father moved for a change in
custody and unsupervised parenting time, stating that he had
complied with the earlier orders and treatment with his issues
concerning anger and alcohol. An order was entered granting
him unsupervised parenting time on specific days and pro-
vided that he must continue with AA and counseling.
In May 2013, there was a review hearing with the conclu-
sion that the evidence showed father had been complying with
the court’s requirements. The court required him to continue
counseling, and to attend AA regularly. Defendant’s lawyers
asked the trial court to order reviews with fixed intervals. The
court refused to grant automatic review and required the filing
of motions. An order was entered in June 2013.
In August 2013, father requested that the trial court re-
move the requirements that he continue counseling and con-
tinue to attend AA meetings. He attached a report by a psy-
chologist who found that he was not suffering from any mental
illness, that he had not gambled or used alcohol since Septem-
ber 2011, and that he was motivated and very committed to
staying alcohol-free. The letter also implied that he was mentally
and emotionally stable, did not pose any risk of violence, and
exhibited adequate parenting skills. The father also presented
a letter from his counselor discharging him from counseling.
Mother argued that there were no grounds for amending the or-
der because father had failed to show that there was a sufficient
change in circumstances to warrant review.
There was a hearing on the motion in September 2013.
Upon cross-examination, father’s counselor admitted that he
sent the letter at father’s request. The psychologist testified
that he did not believe father was an alcoholic and did not
believe that he needed to attend AA meetings because there
was no clinical reason for it.
At the close of proofs, the trial judge noted the conten-
tious history of the case and described some of the problem-
atic behaviors that led to the limitations on father’s parenting
time. The court ruled that there was no change in circum-
stances and assessed costs and attorney fees against father in
the amount of $2,090.
The Court Of Appeals
On appeal the father argued that the trial court erred
when it determined that his motion was frivolous. He argued
that the trial court improperly determined that the change of
circumstances threshold applied to his motion and, even if
it did, erred when it determined that there was no evidence
to support the motion. The trial court found the motion was
frivolous because there was no evidence of any change in cir-
cumstances to support the motion and thought it was with-
out any legal basis. The trial court did not cite the author-
ity on which it relied, but it is evident. See MCR 2.114(F);
MCL 600.2591(1).

The Court of Appeals discussed the change in circum-
stances in custodial care. Under Vodvarka, there must be one
or more appropriate grounds that have or could have a signifi-
cant effect on the child’s life to the extent that a reevaluation of
the child’s custodial situation is to be undertaken.
The Court of Appeals then discussed Shade v Wright,
which deals with modification of parenting time, recognizing
that child custody and parenting time serve different purposes.
While the court in Shade did not precisely define what types
of proper cause or change of circumstances would be required
to modify parenting time, normal life changes experienced by
the child in a case may be sufficient to warrant modification of
the parenting time, even though the same changes would be
insufficient for a change of custody.
The Court of Appeals went on to state that the trial court
had the authority to order father to attend AA meetings and
participate in counseling as conditions on his exercise of par-
enting time, if the court determined that those restrictions
were in the children’s best interests.
In this case, the requested modification did not involve
either a change in custody or a change in the duration or fre-
quency of parenting time. It involved a request to remove a
condition on the exercise of parenting time. For these reasons,
neither Shade nor Vodvarka are directly on point.
The imposition, revocation, or modification of a condi-
tion on the exercise of parenting time will generally not affect
an established custodial environment or alter the frequency
or duration of parenting time. Thus, the lesser, more flexible,
understanding of “proper cause” or “change in circumstances”
should apply to a request to modify or amend a condition on
parenting time.
Rulings
The Court of Appeals concluded that the trial court
clearly erred when it found that the father’s motion was sub-
mitted in violation of MCR 2.114(D)(2). Even if the letter
and report did not establish a change in circumstance the
documents were sufficient to establish “proper cause” for the
trial court to reconsider whether the conditions remained in
the children’s best interests. A reasonable trial court would be
justified in revisiting whether the conditions remained in the
children’s best interests on the basis of these expert opinions.
It cannot be said that father’s motion was not well grounded
in fact and warranted by existing law as required under MCR
2.114(D)(2).
The Court of Appeals ruled that the trial court erred in
ordering the father to pay his former wife’s costs and attorney
fees associated with the motion under MCR 2.114 (E). There
was a request for remand to a different judge. This was denied.
The Court of Appeals vacated the trial court decision to or-
der sanctions and further held that father properly supported
his motion with documentary evidence and that the evidence
established a proper cause for revisiting the conditions. The
case was reversed and remanded to the trial court for further
proceedings.
Comments
This is a very interesting case and we now have a third
standard regarding situations involving counseling or drug or
alcohol. It is worth reading in its entirety.
About the Author
Henry S. Gornbein is a partner with the law firm of Lippitt
O’Keefe Gornbein PLLC in Birmingham, Michigan. His practice is
exclusively devoted to Family Law. He is a former chairperson of the
Family Law Section of the State Bar of Michigan; a former president
of the Michigan Chapter of the American Academy of Matrimonial
Lawyers; former Chair of the Long Range Planning Committee for
the national American Academy of Matrimonial Lawyers; member
of the Oakland County Friend of the Court Citizens Advisory
Committee; winner of the Professionalism Award from the Oakland
County Bar Association in 2004; author of the “Spousal Support”
Chapter of Michigan Family Law; author of “Case of the Issue” for
the Michigan Family Law Journal, State Bar of Michigan; blogger
for the Huffington Post; creator and host of the award-winning
cable television show, Practical Law, now entering its 17th
year; and
Podcaster for DivorceSourceRadio.com. His new book, Divorce
Demystified, Everything You Need to Know Before Filing for
Divorce, is available on Amazon as a softcover or eBook.

7GA
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Professor Lex
By Harvey I. Hauer and Mark A. Snover
Hauer & Snover
Dear Professor Lex,
I am a family law attorney who just read the case of
Hudson v Hudson, ___ Mich App ___ ; ___ NW2d ___ ,
(2016)WL90732.IamalsofamiliarwithMCL552.101(5).
Do you read the case as I do that if a Judgment of Divorce
awards a spouse a portion of the other spouse’s qualified
retirement benefits, without referencing survivor benefits,
the recipient may unilaterally select any form of survivor
benefit available to him or her under the plan?
Dear Practitioner,
Hudson is a significant case that should be reviewed care-
fully by practitioners who have divorce cases involving quali-
fied, eligible, or similar plans.
In Hudson, Defendant was awarded as his sole and sepa-
rate property, free and clear of any claim thereto or interest
therein by Plaintiff 50% of 79% of Plaintiff’s M.P.S.E.R.S.
benefits as of April 23, 2013, adjusted for gains and losses
thereafter until the date of distribution, pursuant to an Eli-
gible Domestic Relations Order.
Defendant sent Plaintiff a proposed EDRO to be filed
with M.P.S.E.R.S. The document is a standardized form that
allows the preparer to select options.
The crux of the dispute between the parties is paragraph
seven of the EDRO, which lays out three options for the
form of payment. The parties agree that option (c), a Joint
Survivor Option, is not relevant. At issue are options (a) and
(b), which state:
(a) Single Life Annuity – Payable Over
Participant’s Lifetime The benefits payable
to the Alternate Payee will begin when the
Participant begins to receive benefits under
the Plan and will be in the form of a single
life annuity payable during the lifetime of
the Participant. If the Participant elects to
receive an early-reduced retirement benefit,
the Alternate Payee’s benefit shall be reduced
by the same factor.
Death of Participant: If the Participant
predeceases the Alternate Payee after
payments to the Alternate Payee begin, all
benefits payable to the Alternate Payee will
permanently cease.

Death of Alternate Payee: If the Alternate
Payee predeceases the Participant after
payments to the Alternate Payee begin, all
benefits payable to the Alternate Payee under
this EDRO will revert to the Participant.
(b) Single Life Annuity - Payable Over
Alternate Payee’s Lifetime.
The benefits payable to the Alternate Payee will
begin when the Participant begins to receive
benefits under the Plan and will be in the
form of a single life annuity payable during
the lifetime of the Alternate Payee. (Note: An
actuarial adjustment to the Alternate Payee’s
benefit will be made to reflect the difference in
life expectancies.)
Death of Participant: If the Participant
predeceases the Alternate Payee once
the Alternate Payee has begun receiving
payments, benefits will continue for the
Alternate Payee’s lifetime.
Death of Alternate Payee: Once payment
of the Alternate Payee’s benefit begins, the
Participant’s benefit is permanently reduced
and the Alternate Payee’s benefit will not
revert to the Participant if the Alternate
Payee predeceases the Participant. Id.
Defendant selected option (b). Plaintiff objected to De-
fendant’s selection. Plaintiff argued that it violated the Judg-

ment of Divorce because it unfairly granted Defendant rights
in the Plaintiff’s pension that were unavailable to Plaintiff in
Defendant’s pension because of an applicable federal regula-
tion. Defendant argued that, according to MCL 552.101(5),
he was allowed to select any option unless the option was
specifically excluded by the Judgment of Divorce. The trial
court ruled against Plaintiff and entered the EDRO. Plain-
tiff appealed.
The Court of Appeals held:
...the trial court erred in determining that MCL
552.101(5) required that defendant be allowed
to select option (b) in paragraph 7 of the EDRO.
However, the trial court’s ultimate conclusion that it
was bound by court rule to enforce the terms of the
judgment of divorce, and that the EDRO complied
with the judgment, was correct, and we therefore
affirm.
MCL 552.101(5) states as follows:
For any divorce or separate maintenance
action filed on or after September 1, 2006, if
a judgment of divorce or judgment of separate
maintenance provides for the assignment of
any rights in and to any pension, annuity,
or retirement benefits, a proportionate share
of all components of the pension, annuity,
or retirement benefits shall be included
in the assignment unless the judgment of
divorce or judgment of separate maintenance
expressly excludes 1 or more components.
Components include, but are not limited
to, supplements, subsidies, early retirement
benefits, postretirement benefit increases,
surviving spouse benefits, and death benefits.
This subsection shall apply regardless of the
characterization of the pension, annuity, or
retirement benefit as regular retirement, early
retirement, disability retirement, death benefit,
or any other characterization or classification,
unless the judgment of divorce or judgment
of separate maintenance expressly excludes a
particular characterization or classification.
***
Thequestionthusbecomeswhetherdefendant’s
option to choose the form of payment,
combined with plaintiff’s inability to select an
option similar to the one chosen by defendant,
renders the resulting division contrary to the
party’s stated intent in the judgment of divorce.
We hold that it does not. The parties expressly
agreedto,andtheresultingjudgmentofdivorce
expressly provides for, specific mathematical
divisions of the parties’ benefits under their
respective pension plans. The parties had an
opportunity, before the judgment of divorce
entered, and regardless of whether they took
advantage of the opportunity, to fully explore
available form of payment options under the
parties’ respective pension plans, to consider
and address the impact, if any, of the available
options and the apparently asymmetrical
nature of the options available under the
MPSERS plan and the FERS plan, and to
make appropriate provision for the handling
of the options in the settlement agreement and
in the judgment of divorce. For example, the
standard EDRO form applicable to plaintiff’s
MPSERS pension, which specifically sets
forth the form of payment options at issue
in this case, was available to the parties and
their legal counsel before the entry of the
judgment of divorce. Similarly, the impact of 5
CFR 838.302(b) on the availability of similar
options under defendant’s FERS plan was
readily determinable by the parties and their
legal counsel before the entry of the judgment
of the divorce.
It was thus incumbent on the parties and
their counsel to include within the judgment
of divorce a determination of all rights of the
parties relative to each other’s pension plans,
including any restrictions on the selection of
options relating to the form of payment. The
fact that they may have neglected or chosen
not to address this issue at the time of the
judgment of divorce does not afford a basis for
subsequently contesting whether the selection
of an option afforded by the EDRO is contrary
to the terms of the judgment of divorce. It is
not. Nor does it afford a basis for finding on
grounds of “equity”—as plaintiff argued—“an
implied term of th[e] settlement agreement”
(and therefore of the resulting judgment of
divorce). See Rory v. Continental Ins Co,
473 Mich. 457, 461; 703 NW2d 23 (2005)
(“the judiciary is without authority to modify
unambiguous contracts or rebalance the
contractual equities struck by the contracting
parties because fundamental principles of
contract law preclude such subjective post hoc

judicial determinations of ‘reasonableness’ as a
basis upon which courts may refuse to enforce
unambiguous contractual provisions.”). The
parties are bound by the terms of the agreed-
uponjudgmentofdivorce.SeeMCR2.507(G);
see also Lentz v. Lentz, 271 Mich.App 465,
472; 721 NW2d 861 (2006) (“Absent fraud,
coercion, or duress, the adults in the marriage
have the right and the freedom to decide what
is a fair and appropriate division of the marital
assets, and our courts should not rewrite such
agreements.”) Id.
This case sends a strong message by stating that it is in-
cumbent on the parties to include within the judgment of
divorce a determination of all rights of the parties relative to
each other’s pensions plans, including any restrictions on the
selection of options related to the form of payment. As attor-
neys we must be diligent in our fact gathering. Prior to advis-
ing a client with regard to the division of a plan, the attorney
must be familiar with the terms of the plan.
The above response is not meant to serve as a solution
to a case. That would require complete disclosure of all facts
in the case, including client consultation. Rather, the intent
is to provide informal guidance based upon the facts that
have been presented. The inquiring lawyer bears full legal
responsibility for determining the validity and use of the
advice provided herein.
Please send questions for Professor Lex to Hhauer@hauer-
snover.com. Include “Professor Lex” in the e-mails subject line.
About the Authors
Harvey I. Hauer, Hauer & Snover, PC, is a Fellow of the
American Academy of Matrimonial Lawyers and the former
president of the Michigan Chapter. He has also served as chair-
person of the State Bar of Michigan Family Law Section, the
Michigan Supreme Court Domestic Relations Court Rule Com-
mittee and the Oakland County Bar Association Family Law
Committee. He has been named by his peers to Best Lawyers in
America, Super Lawyers and Leading Lawyers. He is a co-author
of Michigan Family Law.
Mark A. Snover, Hauer & Snover, PC, has been named
by his peers to Best Lawyers in America and Leading Lawyers in
Family Law. He was named to the National Advocates, top 100
Lawyers. Mr. Snover is listed in Martindale Hubbell’s Bar Regis-
ter of Preeminent Lawyers. He was also selected to the American
Society of Legal Advocates, Top 100 Lawyers, and the National
Association of Distinguished Counsels, Top 1 Percent. Mark
served on the State Bar of Michigan Family Law Council. He is
a frequent author in the family law arena.
FAMILY LAW MEDIATION
Henry Gornbein is now expanding his family law mediation
practice. His goal is to help you resolve your difficult cases and
stay out of court.
 Certified Domestic Relations Mediator
 Certified in Collaborative Law
 Former Chair Person of the Family Law Section of the State
Bar of Michigan
 Former President of the Michigan Chapter of the American
Academy of Matrimonial Lawyers
 Author of the Spousal Support Chapter in Michigan Family
Law
 Author of Case of the Issue in the Michigan Family Law
Journal
Over 45 years of experience mediating and litigating family law cases including custody, parenting time,
change of domicile, child and spousal support, complex property division and business evaluations.
Lippitt O’Keefe Gornbein, PLLC
370 East Maple Road, Third Floor, Birmingham, Michigan 48009
(248) 646-8292
hgornbein@lippittokeefe.com

The Family Law Section
Great Lakes
Honor Roll

Superior
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Michigan
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Huron
• Liisa R. Speaker, Speaker Law Firm, PLLC
• Trish Oleksa Haas, Haas & Associates, PLLC
• Irika Mellin & Kristen Robinson, Mellin Robinson, P.C., Troy

Erie
• Catchick Law, PC
• Joseph W. Cunningham, JD, CPA, PC
• Mathew Kobliska, DeBrincat, Padgett, Kobliska & Zick
• Mallory, Lapka, Scott & Selin, PLLC
• Steven D. Reinheimer, Reinheimer Law Office, PLC
• Jorin G. Rubin
• John J. Schrot, Jr., Berry Moorman PC
• Velzen, Johnsen & Wikander, PC

Special thanks to the members of the Great Lakes Honor Roll for their
support of the Family Law Section and Family Law Journal in 2015

The Family Law Journal serves as Family Law Council's forum to share ideas,
announce new legislation, summarize and analyze case law and trends that affect
our Section. Without question, the Journal represents a significant benefit of one's
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Law Section regarding all pertinent legislation; it likewise employs a skilled lobbyist
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As a way to express your support for the upcoming year, the Journal will be
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Court of Appeals Upholds Equal Division of Fed-
eral Tax Refund, Demil v Demil, Mich App No. 323205
(10/20/15), and Tips on Providing for Tax Overpayments
and Estimated Taxes
Facts
• The parties agreed to a settlement in June 2013 which,
inter alia, provided that they would split the federal tax
refund resulting from their 2012 joint income tax return,
as follows:
“IT IS FURTHER ORDERED AND ADJUDGED
that the parties shall equally divide any refund they
receive from the 2012 Federal Tax returns. (sic) The
defendant shall provide proof of the refund received
directly to the Plaintiff within one week of receipt.”
• Neither party signed the return which was filed electroni-
cally by their tax preparer in April 2013.
• The refund was represented to be “in the approximate
amount of $2,372”.
• In fact, the refund was $34,318, of which H applied
$23,000 to his 2013 federal tax liability.
• During the divorce proceedings, H had represented that
$2,300 “was a correct characterization of the refund and
that he did not have any other assets to disclose to the
court.”
• W later learned that the refund was substantially more
than what had been previously indicated and filed a mo-
tion to enforce the provision in the judgment for equal
division.
• The trial court rejected H’s claim that a large component
of the refund was attributable to his father’s income which
was reported on the joint tax return ”for estate planning
and income tax purposes” and ruled the $34,318 refund
be divided equally.
• H appealed.
Court of Appeals Decision
• The Court upheld the trial court’s decision ruling that it
did not err in its interpretation of the tax refund provision
in the judgment of divorce.
Tips on Providing for Division of Tax Overpayments
Joint and Several Liability
• Joint Tax Refunds
New Address–Most divorce settlements provide for the
division of a tax refund on the final joint return. The
check will be sent to the address on the return and will be
payable to both parties. Thus, delay in receipt of a refund
may result if the principal residence is used on the return
and the refund is sent after the house is sold and the ef-
fective “forwarding address” period has expired. If this is
foreseeable, use another address on the return (e.g., in care
of the CPA/tax preparer).
Notification and Documentation–As was done in the
Demil divorce settlement, it is advisable to provide that
the party who receives the refund check must notify the
other party and provide documentation of the refund and
payment of the other party’s share within a specified pe-
riod of time, e.g., one week.
Take Away–Consider potential logistical problems con-
cerning receipt of a joint tax refund and make appropriate
arrangements, and provide for notification, documenta-
tion, and payment.
• Joint Tax Overpayments Applied to Estimated Tax
Advantage of Applying an Overpayment–Many taxpay-
ers apply for extensions rather than file by April 15. And
most with income not subject to withholding–LLC in-
come; S Corporation income; investment income–must
make estimated tax payments due April 15, June 15, Sep-
tember 15, and January 15 each year.
An overpayment from a prior year is deemed received by
the IRS as of the April 15 initial due date even if the re-
turn is filed six months later at or near the October 15
TAX TRENDS AND DEVELOPMENTS
Court of Appeals Upholds Equal
Division of Federal Tax Refund
By Joseph W. Cunningham, JD, CPA

extended due date. Thus, it is often advantageous to apply
an overpayment to the succeeding year tax liability, espe-
cially if a taxpayer realizes late in the year when the return
is filed that preceding estimated payments are insufficient
to avoid the underpayment tax liability. This can be done
with the entire overpayment, or just part of it with the
balance refunded, as in the Demil case.
Parties Can Each Apply Part of Overpayment - Parties
are free to agree to the application of an overpayment
on a joint return to the next year’s tax. If the amount
so applied is allocated 100% to the husband, nothing
needs to be done on either spouse’s succeeding year tax
return. However, if such amount applied exceeds 50% of
the overpayment that is to be divided equally, husband
will need to make an after-tax payment to wife to square
things off.
If any of the overpayment is to be applied to wife’s tax,
she must enter husband’s SSN in the appropriate space on
page one of her Form 1040 followed by “DIV”. If wife has
remarried, she must enter ex-husband’s SSN at the bot-
tom of Form 1040 page one, again followed by “DIV”.
Take Away–If either party relies on estimated tax pay-
ments and an overpayment is possible, make provisions
in advance for potential advantageous use of the over-
payment.
• Estimated Taxes
New Requirement for Many–Many recipients of spousal
support have never needed to make quarterly estimated
tax payments. However, since no income tax is withheld
on spousal support payments, estimated tax payments are
generally necessary to avoid (1) a large April 15 payment
and (2) corresponding underpayment of tax penalties.
This applies to both federal and state income taxes.
The underpayment penalty may be avoided if the amount
paid in – via wage withholding or estimated tax payments
– exceeds the party’s hypothetical prior year tax based sole-
ly on his or her individual income and deductions. This
often applies in the first year of receipt of spousal support,
but not generally to subsequent years.
Take Away–Attorneys should advise clients awarded
spousal support to contact his or her tax advisor regarding
estimated tax payment requirements.
About the Author
Joe Cunningham has over 25 years of experience special-
izing in financial and tax aspects of divorce, including business
valuation, valuing and dividing retirement benefits, and develop-
ing settlement proposals. He has lectured extensively for ICLE, the
Family Law Section, and the MACPA. Joe is also the author of
numerous journal articles and chapters in family law treatises. His
office is in Troy though his practice is statewide.
Michigan Family Law Appeals
Scott Bassett
Quality and Experience
248-232-3840 - Telephone
248-928-0355 - Fax
scott@michiganfamilylawappeals.com
www.michiganfamilylawappeals.com
A Michigan Virtual Law Practice

Writing and Submitting the Military
Pension Division Order: Five More Tips
By Mark E. Sullivan
The first part of this article contained a summary of what
retired pay centers process military pension division orders, the
resources available to practitioners, jurisdictional rules for di-
rect-pay orders, what documents are acceptable for garnishment
at the retired pay center, and the specific clauses and data re-
quired for pension division orders which will be honored at the
retired pay center.
Tip #1 – Know What You Want.
The order may award a percentage or a fixed dollar amount
to the former spouse of the military member.1
Set out below are
examples of the phrasing for these and other types of pension-
division clauses.
A percentage clause might state: “Wife is granted 43% of
Husband’s military retired pay.” Alternatively, a “fixed dollar
amount” clause could read: “Wife is awarded $550 per month
as military pension division.” Every allowable clause automati-
cally provides for cost-of-living adjustments (COLAs) except for
the “fixed dollar amount” clause.2
Attempting to add a COLA
to a fixed dollar clause will result in rejection of the entire order.
The rules also allow awards that are not percentages or fixed
dollar amounts.3
The retired pay center will honor a court award
that is expressed as a formula or a hypothetical. These are usually
used if the SM is still serving.
A formula is an award expressed as a ratio.4
For example,
the order could state: “Wife shall receive 50% of the Husband’s
disposable retired pay times a fraction, the numerator being
the months of marital pension service, and the denominator
being the total months of service by Husband.” The order
must then provide the numerator, which is usually the months
of marriage during which time the member performed credit-
able military service. The retired pay center cannot guess or
infer what the court (or the parties) has determined to be the
months of service during marriage (the numerator); however,
the designated agent can provide the total months of service
(the denominator). Note that if the court also provides the
total months of service, DFAS will honor that number regard-
less of its accuracy.
A hypothetical clause5
is the most difficult one to draft. It
involves an award based on a rank or status which is different
from that which exists when the SM retires. For example,
the order might say: “Wife is granted 50% of what an Army
staff sergeant (E-6) would receive if he were to retire with
over 18 years of military service and ‘High-3’ pay of $___
per month.”6
Because there’s no table that shows this type of
pay, DFAS would calculate the hypothetical pay amount and
compute a ratio to the actual retired pay in order to calculate
the amount to which the wife in this example should receive.
A COLA will automatically be awarded with a hypotheti-
cal clause. Finally, be sure to include the rank and years of
service of the member when submitting a hypothetical award,
as well as the “High-3 pay” of the servicemember. If there
are variables which are missing, the retired pay center will not
supply them; the order will be rejected.
Guard/Reserve pension clauses deserve separate treatment.
When a Guard or Reserve pension is involved and the member
has not stopped drilling and put in for retirement, a “formula
clause” is typically used, since the final retired pay isn’t known
and the total service creditable for retirement is also unknown.
In a Guard/Reserve case involving a formula clause, you must
specify division according to retirement points.7
The usual
language refers to points earned during marriage divided by
total points during the member’s career.
If a formula clause is not used for a still-drilling Reserve
or Guard member, then this “points over points” rule does
not apply. For example, the retired pay center will honor a
percentage award for any Guard or Reserve servicemember
with language such as “John will pay Mary 35% of his Army
National Guard retired pay.” It will also accept any decree in
which all the variables are filled in by the court.
Tip #2 – A Helpful Checklist for Pension Division.
“One size fits all” definitely doesn’t apply to military pen-
sion division orders. A good practitioner will check and re-
check the pension division order to be sure it complies with
the regulations and the statute, accomplishes the needs of the
client, makes sense, and will be honored by the retired pay
center. In addition to the tips shown above, here is a checklist
used at DFAS for pension division orders:

Papazian Law Journal | Mark Papazian

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